CPI-29-08-00003-E Adjudicatory Proceedings and Appeals Procedure

7/16/08 N.Y. St. Reg. CPI-29-08-00003-E

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 29

July 16, 2008

RULE MAKING ACTIVITIES

PUBLIC INTEGRITY, COMMISSION ON

EMERGENCY RULE MAKING

 

I.D No. CPI-29-08-00003-E

Filing No. 629

Filing Date. Jun. 26, 2008

Effective Date. Jun. 26, 2008

Adjudicatory Proceedings and Appeals Procedure

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Amendment of Part 941 to Title 19 NYCRR.

Statutory authority:

Executive Law, section 94(9)(c) and (13)

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

In order that the regulations governing adjudicatory proceedings and appeals procedure conform with changes effectuated by the recently-enacted governing statute, the Public Employee Ethics Reform Act of 2007.

Subject:

Adjudicatory proceedings and appeals procedure.

Purpose:

To afford all parties due process protection and fair and just resolution of all matters that may come before the commission.

Substance of emergency rule:

The rules governing adjudicatory proceedings and appeals procedures are amended to comport with the Public Employee Ethics Reform Act of 2007 (PEERA). Therefore, these amendments provide that the adjudicatory proceeding rules apply to violations of all laws within the jurisdiction of the Commission on Public Integrity, specifically, sections 73, 73-a and 74 of the Public Officers Law, section 107 of the Civil Service Law and Article 1-A of the Legislative Law. As PEERA repealed the Public Advisory Council, these amendments also set forth the amended appeals procedure for applications for deletion and exemption from Financial Disclosure Statements pursuant to section 73-a of the Public Officers Law. These amendments also provide the amended list of documents that are publicly available from the Commission on Public Integrity.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire September 23, 2008.

Text of emergency rule and any required statements and analyses may be obtained from:

Shari Calnero, Associate Counsel, Commission on Public Integrity, 540 Broadway, Albany, NY 12207, [phone], e-mail: [e-mail]

Regulatory Impact Statement

1. Statutory authority: Section 94 (9)(c) of the Executive Law generally directs the Commission on Public Integrity (“CPI”) to adopt, amend, and rescind rules and regulations to govern the procedures of the CPI; and section 94 (13) specifically directs the CPI to adopt rules governing the conduct of adjudicatory hearings for violations of all laws within its jurisdiction, as well as to adopt rules governing appeals taken pursuant to denials of requests for certain deletions or exemptions from Financial Disclosure Statements pursuant to section 73-a of the Public Officers Law.

2. Legislative objectives: The Public Employee Ethics Reform Act of 2007 (“PEERA”) established the CPI, thus merging the former New York State Ethics Commission (“Ethics Commission”) and the former New York Temporary State Commission on Lobbying (“Lobbying Commission”). PEERA intended that the CPI's consolidated jurisdiction would strengthen integrity, public trust and confidence in New York State government. PEERA authorizes the CPI to conduct adjudicatory proceedings to enforce the laws within its jurisdiction and to ensure that all parties receive due process protection and a fair and just resolution of applicable enforcement actions and of the aforementioned appeals.

3. Needs and benefits: The proposed rule-making is necessary to fulfill the statutory mandate of the CPI. PEERA became law on March 26, 2007. Pursuant to PEERA, effective September 22, 2007, all powers, duties and functions conferred upon the former Ethics Commission and the former Lobbying Commission were transferred to and assumed by the CPI. Pursuant to Resolution CPI 07-03, the CPI adopted the rules codified at Title 19 NYCRR Part 941, which were previously adopted by the former Ethics Commission, to govern the conduct of adjudicatory proceedings for violations of all laws within the CPI's jurisdiction, specifically violations of sections 73, 73-a and 74 of the Public Officers Law, section 107 of the Civil Service Law and Article 1-A of the Legislative Law.

However, the existing text of Title 19 NYCRR Part 941 does not comport with PEERA and Resolution CPI 07-03. Given the ongoing nature of CPI's adjudicatory proceedings and the appeal process for denials on requests for deletion and exemption from Financial Disclosure Statements, time is of the essence in regard to the adoption and publication of the amendments to this rule as an emergency measure.

For example, pursuant to PEERA, the CPI's jurisdiction is expanded in that it may now adjudicate Public Officers Law section 74 violations. The existing text of Title 19 Part 941 does not state that these rules apply to such violations. By adopting this emergency rule, Title 19 NYCRR Part 941 will be amended to reflect that these rules also apply to Public Officers Law section 74 violations, thus providing the general public and those who would be affected by this change in the law, including statewide elected officials and state officers and employees, with adequate notice, comment and due process of law.

PEERA also repealed the Public Advisory Council, which previously served as the body authorized to review requests for deletions and exemptions of certain information from Financial Disclosure Statements, as provided in paragraphs (h) and (i) of subdivision 9 of section 94 of the Executive Law. While PEERA retains an appeal process for these requests for deletion and exemption, the existing text of the applicable section Part 941.19 is obsolete, as it describes the now-dissolved Public Advisory Council's role in the appeal process. By adopting this emergency rule, section 941.19 will be amended to reflect that the Public Advisory Council no longer exists, and to also set forth the statutorily-authorized appeal process, thus providing statewide elected officials and state officers and employees who are required to submit Financial Disclosure Statements with adequate notice should they seek deletions or exemptions or appeal such denials.

In addition, PEERA authorized the CPI to enforce and adjudicate violations of section 107 of the Civil Service Law, commonly referred to as the “Little Hatch Act.” The existing text of Title 19 NYCRR Part 941 does not state that the rules apply to such violations. By adopting this emergency rule, Title 19 NYCRR Part 941 will be amended to reflect that these rules also apply to Civil Service Law section 107 violations, thus providing the general public and those who would be affected by this change in the law, including statewide elected officials and state officers and employees, with adequate notice, comment and due process of law.

Furthermore, PEERA authorized the CPI to enforce and adjudicate violations of Article 1-A of the Legislative Law, which was within the jurisdiction of the former Lobbying Commission prior to September 22, 2007. The former Lobbying Commission's adjudicatory proceeding rules codified at Title 21 NYCRR Part 250 are obsolete and do not comport with PEERA. Pursuant to Resolution CPI 07-03, the CPI duly rescinded Title 21 NYCRR Part 250 and adopted the rules set forth in Title 19 NYCRR Part 941 to also cover violations of Article 1-A of the Legislative Law, subject to PEERA's requirement that adjudicatory proceedings for such violations shall be open to the public in accordance with Article 7 of the Public Officers Law. While the rules codified at Title 19 NYCRR Part 941 now govern violations of Article 1-A of the Legislative Law, the existing text of Title 19 NYCRR Part 941 does not state that the rules also apply to violations of Article 1-A of the Legislative Law. By adopting this emergency rule, Title 19 NYCRR Part 941 will be amended to reflect that these rules also apply to violations of Article 1-A of the Legislative Law, thus providing the general public and those affected by this change in the law, including registered lobbyists and clients in New York State, with adequate notice, comment and due process of law.

4. Costs:

a. costs to regulated parties for implementation and compliance: None

b. costs to the agency, state and local government: None

c. cost information is based on the fact that there are no costs associated with these amendments to the rules.

d. not applicable

5. Local government mandate: None

6. Paperwork: This amendment will not require the preparation of any additional forms or paperwork.

7. Duplication: None

8. Alternatives: On December 11, 2007, the CPI approved Resolution CPI 07-03, which adopted the rules codified at Title 19 NYCRR Part 941 to govern adjudicatory proceedings for all laws within its jurisdiction. While this resolution provides the requisite authority to adopt such rules, the text of the existing rules remains inaccurate and misleading to the general public and those directly affected by the changes in the law effectuated by PEERA. Therefore, the CPI seeks to publish notice of such amendment in the State Register and the revised text of the rules in the Official Compilation of Codes, Rules and Regulations of the State of New York in order to afford the public with the most notice and maximum due process practicable.

9. Federal standards: The proposed rule-making pertains to adjudicatory proceedings and appeals taken from denials for exemption or deletion from Financial Disclosure Statements pursuant to PEERA. These amendments do not exceed any federal minimum standard with regard to a similar subject area.

10. Compliance schedule: Compliance is required on the part of the CPI only and will take effect upon emergency adoption.

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not submitted with this Notice of Emergency Adoption since the proposed rule-making will not impose any adverse economic impact on small businesses or local governments, nor will it require or impose any reporting, record-keeping or other affirmative acts on the part of these entities for compliance purposes. The Commission notes that while it is authorized by the Public Employee Ethics Reform Act of 2007 (“2007”) to enforce the reporting requirements of the Article 1-A of the Legislative Law, which requires those public corporations that conduct lobbying activity to register and report expenses in accordance with the law, these amendments to the adjudicatory proceeding and appeal procedure rules does not impose any adverse economic impact on those public corporations for compliance purposes. The New York State Commission on Public Integrity makes these findings based on the fact that the adjudicatory proceedings and appeals procedure affect only certain State officers and employees and lobbyists and their clients, including certain public corporations registered for lobbying activity in New York State. Small businesses and local governments are not affected in any way by these amendments.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not submitted with this Notice of Emergency Adoption since the proposed rule-making will not impose any adverse economic impact on rural areas, nor will compliance require or impose any reporting, record-keeping or other affirmative acts on the part of rural areas. The Commission on Public Integrity makes these findings based on the fact that the adjudicatory proceedings and appeals procedure affect only certain State officers and employees and registered lobbyists and clients in New York State. Rural areas are not affected in any way.

Job Impact Statement

Job Impact Statement is not submitted with this Notice of Emergency Adoption since the proposed rule-making will have no impact on jobs or employment opportunities. The Commission on Public Integrity makes this finding based on the fact that the proposed rule-making is technical in nature and applies to internal adjudicatory proceedings and appeal procedures only. In addition, the regulation applies to certain State officers and employees subject to the provisions of Public Officers Law sections 73, 73-a and 74 and Civil Service Law section 107 and lobbyists and clients subject to Article one-A of the Legislative law. This regulation does not apply, nor relate to small businesses, economic development or employment opportunities.